Saskatchewan loses carbon tax challenge in court

The 155-page decision concludes “The Greenhouse Gas Pollution Pricing Act is not unconstitutional either in whole or in part”.
Editor’s note: This story will be updated with more information as it becomes available

Saskatchewan Premier Scott Moe vowed the fight over the carbon tax is going to “Game 7” after the Saskatchewan Court of Appeal sided Friday with the federal government in its constitutional ability to impose such a measure.

The 155-page decision concludes “The Greenhouse Gas Pollution Pricing Act is not unconstitutional either in whole or in part,” upholding Ottawa’s ability to set a minimum national price on greenhouse gas emissions.

The majority of the Saskatchewan Court of Appeal, with Chief Justice Robert Richards authoring the decision, found the Act is not unconstitutional in a 3-2 split decision. Justices Lian Schwann and Georgina Jackson concurred. The minority found the act is wholly unconstitutional.

Moe, who has said a carbon tax hurts his province economically, told reporters there are “good grounds for an appeal.”

Using a sports metaphor during his afternoon press conference, Moe called the ruling “Game 1” of a seven-game series, with the grand finale set for the Supreme Court.

“Though I am disappointed by today’s ruling, our fight will continue on behalf of Saskatchewan people — who oppose the ineffective, job-killing Trudeau carbon tax,” he said. “It was a 3-2 split decision and we look to appeal to the Supreme Court of Canada.”

The government has roughly 30 days to file a notice of appeal. Provincial Minister of Justice and Attorney General Don Morgan hopes the Supreme Court could hear the appeal before the federal election but acknowledged that’s unlikely.

In the meantime, Moe said, the province will continue to implement its Prairie Resilience plan, which the province has touted as an alternative to federal policies like the carbon backstop that came into effect this year.

Speaking to reporters in Ottawa shortly after the decision was released, Environment Minister Catherine McKenna said the decision confirms that putting a price on carbon is not only constitutional, but an “effective and essential part of any serious response to the global challenge of climate change.”

McKenna went on to note that Canadians across the country are hurting from the effects of climate change. She then accused “conservative politicians” including Moe of playing “partisan games” and urge them to “join in on serious and effective climate action.”

In the decision, Richards wrote that the facts presented to the court “confirms that climate change caused by anthropogenic greenhouse gas (GHG) emissions is one of the great existential issues of our time. The pressing importance of limiting such emissions is accepted by all of the participants in these proceedings.”

He wrote, “The sole issue before the Court is whether Parliament has the constitutional authority to enact the Act. The issue is not whether GHG pricing should or should not be adopted or whether the Act is effective or fair. Those are questions to be answered by Parliament and by provincial legislatures, not by courts.”

The majority of the court rejected the Saskatchewan government’s arguments, which asserted the Act is invalid because the Governor in Council determines the provinces where it operates, offending the principle of federalism.

“Saskatchewan’s arguments on this front cannot be accepted. The principle of federalism is not a free-standing concept that can override an otherwise validly enacted law. Rather, it is a value to be taken into account when interpreting the Constitution,” wrote Richards. The court also rejected a secondary argument, noting the levies imposed by the Act are regulatory charges, not taxes. “Even if they were taxes, the Act does not offend s. 53. Parliament has clearly and expressly authorized the Governor in Council to decide where the Act will apply.”

In the alternative, the Saskatchewan government argued the Act is unconstitutional because it is concerned with property and civil rights and other matters of a purely local nature falling within exclusive provincial legislative authority, according to Richards’ summary. Ottawa responded by seeking to uphold the Act as a valid exercise of Parliament’s jurisdiction under the national concern branch of its “Peace, Order, and good Government” (POGG) power. “Canada contends it should be recognized, under the national concern branch, as having jurisdiction over ‘the cumulative dimensions of GHG emissions,’ ” wrote Richards. “This approach must be rejected because it would allow Parliament to intrude so deeply into areas of provincial authority that the balance of federalism would be upset. Further, it would hamper and limit provincial efforts to deal with GHG emissions,” he added.

However, he noted Parliament does have authority over a narrower POGG subject matter — the establishment of minimum national standards of price stringency for GHG emissions. “This jurisdiction has the singleness, distinctiveness and indivisibility required by the law. It also has a limited impact on the balance of federalism and leaves provinces broad scope to legislate in the GHG area. The Act is constitutionally valid because its essential character falls within the scope of this POGG authority,” said Richards’ majority decision.

University of Saskatchewan law professor Dwight Newman tweeted that the “federal government (is) very fortunate that B.C. intervened with an argument to salvage the case for three of the judges.”

In their dissenting opinion, Justices Neal Caldwell and Ralph Ottenbreit took a differing view. They found that the fuel levy outlined in the federal act was a tax, and that was enacted in a “constitutionally repugnant” manner. They argued that the provinces have the exclusive right to control GHG emissions, and the federal government had no right to trump their own constitutional measures.

The dissenting justices also found that the act fails to meet the threshold for Ottawa to make laws based on peace, order and good government. They argued that it hindered the provinces’ ability to develop their own, local responses to emissions “at the level that is most suited to achieving the nuanced response that a diverse country requires.”

Outside of the Saskatchewan Legislative Building, Larry Kowalchuk, the lawyer representing a coalition of 10 interveners on behalf of the federal government, called the decision “a precedent opinion in North America.

“They indicated that was not in dispute, which I think is very important for the world and for Canadians and youth to hear — the court recognizing that we have a problem that we need to deal with, so that’s huge.”

When Kowalchuk announced the decision in front of the Legislative Building at noon, a crowd of students gathered to protest the provincial government’s lack of climate action cheered and waved their protest signs in support.

North-Marie Hunter, studying health studies at the U of R, has been at the student strikes every week. The students still plan on having their weekly protest on Fridays until enough action is taken to “bring CO2 levels back to preindustrial levels.”

Jim Elliott of the Council of Canadians said he hoped the provincial government would accept the Saskatchewan Court of Appeal’s decision and take action instead of taking the matter to the Supreme Court.

The Agricultural Producers Association of Saskatchewan (APAS) said they “will continue to advocate for climate change policies that don’t harm the agriculture industry.

“Farmers and ranchers are unable to pass along the costs of the carbon tax, and it will only serve to harm their businesses, without helping to deal with carbon emissions. Nor does it recognize the positive contributions made by producers.” said Todd Lewis, APAS President, said in a news release.

APAS was the only farm organization that sought and was granted intervenor status in order to support the province’s position in court. Lewis said the organization felt it was vital that agricultural producers were represented in this important case.

“The Justices may have been split on this issue, but producers are not,” Lewis concluded.

Ecojustice represented the Athabasca Chipewyan First Nation (ACFN) and the David Suzuki Foundation in the reference case, which asked the court to weigh in on whether the federal government’s Greenhouse Gas Pollution Pricing Act was constitutional.

On behalf of its clients, Ecojustice was the sole group to advance an argument that the law could also be supported under Parliament’s power to deal with a national emergency, it said in a statement released after the decision.

While the Court found that the law was not sufficiently temporary to qualify as emergency legislation, it agreed that “climate change is doubtless an emergency in the sense that it presents a genuine threat to Canada.” This is a judicial first.

“Today’s historic ruling makes it clear: The federal government has the power to bring Canada together to combat climate change. The science tells us that Canada’s climate is warming twice as fast as in the rest of the world. With only 11 years to ward off the worst impacts of climate change, Ecojustice calls on Canada to continue to take urgent, national climate action by introducing strong, enforceable laws that will get us to zero emissions by 2050,” Joshua Ginsberg, Ecojustice lawyer, said

Ian Bruce, David Suzuki Foundation science and policy director, added, “Today’s decision paves the way for a strong, fair and unified approach to tackling climate change across the country. Recent reports on Canada’s warming and extreme weather show we must urgently use all the tools in our tool box to shrink harmful carbon pollution and set Canada on the right path forward.”

The Canadian Public Health Association (CPHA) also applauded the ruling supporting the constitutionality of the federal Greenhouse Gas Pollution Pricing Act, saying this decision affirms the right and the responsibility of the federal government to set national standards for carbon pricing in Canada.

“We are pleased with the Court’s ruling affirming the role of the federal government in protecting the health of Canadians,” says Richard Musto, chair of CPHA’s Board of Directors, in a released statement. “All levels of government need to act in a coordinated fashion to prevent negative health outcomes from carbon pollution.”

“Our collective response to climate change can also be ‘the greatest health opportunity of this century’ as many of the policies needed to fight climate change, such as carbon pollution pricing, will also produce health co-benefits, such as reduced health care costs, and improve social cohesion and equity in our communities,” said Ian Culbert, CPHA’s executive director.

“Climate change is a critical public health issue that threatens to undermine the past century of gains for population health in Canada and around the world,” added Culbert. “The resulting health outcomes in Canada include respiratory and cardiovascular diseases, the spread of vector-borne diseases like Lyme disease and the Zika virus, physical and psychological trauma and death.”

The court reserved its decision Feb. 14 after hearing two days of legal arguments on the constitutionality of Ottawa’s Greenhouse Gas Pollution Pricing Act. The carbon tax on fuel took effect on April 1.

During the hearing, 16 groups — governments, environmental organizations and even Alberta’s then-Opposition — intervened in the case. More than three dozen lawyers faced a five-judge panel, pushing the public into an overflow room.

The reference case is essentially a request for the province’s top court to give a legal opinion on whether the carbon backstop is constitutional.

During the arguments, Ottawa attempted to assert its authority over matters of national concern. Canada has long said it’s committed to meeting emission targets under the Paris Accord. It argues a carbon tax — or what it prefers to call carbon pricing — is the most effective way to do it.

But Saskatchewan says the tax will harm its resource-based economy. The province’s lawyers argued the court battle is not a debate about climate change, or even the carbon tax. But rather, the province’s arguments largely revolve around the federal government’s alleged intrusion into areas of provincial jurisdiction.

Regardless of the decision by the province’s highest court, it likely won’t be the last word. Ontario is bringing a similar case, and Saskatchewan’s attorney general has said there’s “no doubt” the matter will end up in the Supreme Court of Canada.

The Following 3 Users Like This Post By Turtlehead

the SCC can just refuse to hear it, can't they
wouldn't be the first time unconstitutional laws have been allowed to stand that way

"If we had a vote tomorrow I would vote, once again, to keep the Registry..." - Justin Trudeau
"... if Canadians are to trust their government, their government needs to trust Canadians." - Justin Trudeau

The Following 3 Users Like This Post By LB303

680 News (Toronto radio station) said that two (2) of the justices supported the province, so provincial lawyers are going through those opinions to see if they can use them to appeal to the Supreme Court.

680 News (Toronto radio station) said that two (2) of the justices supported the province, so provincial lawyers are going through those opinions to see if they can use them to appeal to the Supreme Court.

Correct.

Justices Neal Caldwell and Ralph Ottenbreit said Ottawa's carbon tax was forced upon the provinces in a “constitutionally repugnant” manner. Also, they found that the act (carbon tax legislation) fails to meet the threshold for Ottawa to make laws based on peace, order and good government.

There was also a tweet thread i read that said the argument the 3 judges supporting the fed position is very weak.

Keep in mind Ontario's challenge is based on different legal arguments than Sask. And manitoba's is based on different legal arguments than both Ont and Sask.

This is all going to the SCoC, so mcKenna's victory lap this afternoon was premature to say the least.

The Following User Liked This Post By soulchaser

Let's say Ontario wins. Does that set a precident country wide or just in Ontario ? Itll all be dead after October anyway....just wondering what effect an unconstitutional decision in another province would have.

Let's say Ontario wins. Does that set a precident country wide or just in Ontario ? Itll all be dead after October anyway....just wondering what effect an unconstitutional decision in another province would have.

No.

I suspect Sask will appeal.

If Ontario wins, the feds will appeal. If the feds win, Ontario will appeal.

If Manitoba wins, the feds will appeal. If the feds win, Manitoba will appeal.

I assume Alberta will launch a challange and the sam will happen. If Alberta wins the feds will appeal. If the Feds win Alberta will appeal.

I think this will eventually go before the SCoC where all the provinces will join an fight together